Hunt v Director of Public Prosecutions (Cth) - [2009] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
HUNT v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
[2009] SASC 116
Judgment of The Honourable Justice Gray
1 May 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - CUMULATIVE OR CONCURRENT SENTENCES
Appeal against sentence - defendant and appellant pleaded guilty in Magistrates Court to 18 counts of making a false statement in connection with or in support of claim for security payment under Social Security Law, and being reckless as to whether statement false - whether sentence imposed had effect of making sentence cumulative on existing sentence being served - whether defendant materially disadvantaged as consequence of structure of sentence - whether Magistrate acted within power.
Held: appeal dismissed - Magistrate acted within power - circumstances of offending did not give rise to case for concurrency of sentencing - defendant's complaint or grievance not with Magistrate's approach to sentencing but in respect of administrative decision of Chief Executive Officer of Correctional Services Department.
Social Security (Administration) Act 1999 (Cth) s 212 and s 217; Crimes Act 1914 (Cth) s 20(1)(b); Correctional Services Act 1982 (SA) s 37A, referred to.
Telford v Severin (2007) 98 SASR 70, considered.

HUNT v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
[2009] SASC 116
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
Roger David Hunt, the defendant and appellant, pleaded guilty in the Adelaide Magistrates Court to 18 counts of making a false statement in connection with or in support of a claim for a security payment under the Social Security Law, namely Newstart Allowance, and being reckless as to whether the statement was false, contrary to sections 212[1] and 217[2] of the Social Security (Administration) Act 1999 (Cth).
[1] (1) A person contravenes this subsection if:
(a) the person makes a statement; and
(b) the statement is false or misleading; and
(c) the person is reckless as to whether the statement is false or misleading; and
(d) the statement is made in connection with, or in support of, the person's or any other person's:
(i) claim for a social security payment under the social security law.
[2] A person who contravenes a provision of Division 2 is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 12 months.
The offending occurred during two periods, from 7 October 2004 to 13 January 2005, and from 16 June to 3 November 2005. The sentencing Magistrate summarised the circumstances of the defendant’s offending as follows:
As I have said, you were in receipt of the Newstart Allowance and you had been since 1995. That was paid into your Adelaide Bank account. In order to receive this benefit you were required to lodge fortnightly applications for payment of Newstart Allowance forms. The first question on these forms asked you whether you had done any work in the period covered by the form and, if so, how much gross income you could earn.
You made 18 false statements on those forms during the period of offending. On three occasions you falsely stated that you had done no work when in fact you had and on fifteen occasions you stated that you had done work but under-declared the amount that you had earned.
In total you declared an amount earned of $1,011.50 during the offending period, whereas it appears from your employers that your actual gross income was a figure of $26, 876.75 during the same period.
You had four employers at different times during the offending period, Maglea Pty Ltd trading as Active Bobkats, Lonelee Pty Ltd, Summit Tippers and A & V Contractors.
You were spoken with by a Centrelink Customer Service Officer on 30 June 2005. The Customer Service Officer noticed that you had not declared any income on your application form and asked whether you had done any work in the last two weeks. You stated that you had worked for ASK Employment. That organisation was working on a possible job for you but nothing yet. This was false as you had worked for and earned income from Summit Tippers during that fortnight.
Your offending was discovered eventually through an Australian Taxation Office data match.
As a consequence of your offending you were overpaid to the amount of $8,276.40. None of that amount has been repaid. You admitted to working for each of the employers listed. You admitted completing, signing and lodging payment forms alleged above. You did not admit the offending.
The defendant’s antecedent report disclosed numerous dishonesty offences from 1975 to 2006. The prior offending included larceny, unlawful possession, making a false statement in connection with a claim for social security and a failure to comply with bail agreements, bonds and restraining orders. As the Magistrate observed:
Significantly on 26 April 2001 in this court you received a 9 month term of imprisonment for a total of 31 social security related offences, similar in kind to those which I must sentence you for today. It was ordered that you serve 10 weeks of a 9 month term of imprisonment and that you be released on a recognisance to be of good behaviour for a period of 18 months as concerns the balance of that sentence.
I am told that you breached that recognisance by committing the offence of assault occasioning actual bodily harm in respect of which you were sentence to a total, including the balance of the sentence imposed on 26 April 2001, of 26 months with a non-parole period of 18 months, both the sentence and the non-parole period dating from 26 February 2008. The consequence is that you are presently serving that sentence and will become eligible for parole on 26 August 2009.
The Magistrate summarised the submissions made by the defendant’s counsel as to his personal antecedents in the following terms:
Your counsellor has told me that you are 50 years old, you are one of six children. Your father died when you were only 3 years of age. You were later adopted by your step-father with whom you have had a close relationship. Your mother is still alive. You had a 9 year relationship with Michelle Campbell. This was a turbulent relationship. She had a problem with alcohol. You were working and the money that you received from your offending was used to sustain your lifestyle. Your counsel had characterised your offending as motivated by need as opposed to greed. Your counsel has said that you felt isolated and lonely during the period of offending and were exhibiting signs of depression. You were receiving and taking anti-depressant medication. He has urged upon me that I should exercise leniency in fixing the term of imprisonment I impose. He points to the sentence which you are already serving. He does not argue that the sentence should be other than cumulative on your existing sentence.
The Magistrate determined that the offences were serious and that a term of imprisonment should be imposed. In that respect the Magistrate remarked:
These are serious offences. You are not a first offender. There is a need in this instance to recognise both the principles of general and personal deterrence. Offences of this kind are prevalent, difficult to detect and it will be apparent to you that the social security system is one that relies upon the trust and honesty of its participants. Were it otherwise, the cost of administering the system would be prohibitive.
Pursuant to s 219 of the Act I impose one penalty in respect of all offences which will be a penalty of 10 months imprisonment. Had it not been for your plea of guilty I would have imposed a term of imprisonment of 12 months.
Pursuant to s 20(1)(b) of the Crimes Act I order that you be released after having served 4 months of that sentence upon your agreeing to enter a recognisance in the amount of $250 to be of good behaviour for a period of two years. I order that sentence to commence on 26 August 2009. I make an order of restitution in favour of the Commonwealth of Australia in the amount of $8,276.40.
The Appeal
On the hearing of the appeal, the defendant was unrepresented. It was submitted that the order that the sentence commence on 26 August 2009, had the effect of making the subject sentence cumulative on the sentence that he was then serving. As the Magistrate observed, under that earlier sentence, the defendant would become eligible for parole on 26 August 2009. The earlier sentence of imprisonment would not expire until 26 April 2010. The defendant’s submission that the subject sentence was cumulative on the earlier sentence is incorrect. It is in part concurrent.
The defendant argued that he was materially disadvantaged as a consequence of the manner in which the sentence was structured. He claimed that his opportunity to serve out part of his sentence in home detention was adversely affected. He claimed that this caused an unfairness that called for the allowing of the appeal.
The defendant’s appeal was lodged almost nine months out of time. The defendant explained that he was unaware that the subject sentence was only partly concurrent. When he realised that this was the case, and formed the belief that this would adversely affect the prospect that he might serve part of his sentence on home detention, he immediately appealed. Counsel appearing for the respondent, did not challenge this assertion. I am prepared to act on this assertion and extend time for the lodging of the appeal.
As earlier observed, the sentence imposed by the Magistrate with respect to the subject offending, was imprisonment for 10 months. The Magistrate then exercised his powers under section 20(1)(b) of the Crimes Act 1914 (Cth) and ordered that the defendant be released after he had served four months of that sentence, on the defendant agreeing to enter into a reconnaissance to be of good behaviour for two years. As the Magistrate was imposing a sentence of imprisonment for less than three years, he had no power to fix a non-parole period.[3] It is relevant to note that the Magistrate had no authority to fix a single non-parole period in respect of both the Federal sentence of imprisonment and the State sentence of imprisonment.[4]
[3] Crimes Act 1914 (Cth) section 19AC(1).
[4] Crimes Act 1914 (Cth) section 19AJ.
When regard is had to the circumstances of the defendant’s offending, it was well within the Magistrate’s discretion to impose a term of imprisonment. As outlined, the defendant’s offending involved a dishonest course of conduct over an extended period. When regard is also had to the defendant’s antecedents, it is inevitable that a term of imprisonment would be imposed. In light of the circumstances of the offending, and those antecedents, I am of the view that the sentence imposed with respect to the subject offending was merciful.
The defendant’s complaint, in substance, relates to the manner in which the Chief Executive Officer of the Correctional Services Department has or may exercise his discretion with respect to release on Home Detention. Section 37A of the Correctional Services Act 1982 (SA) provides the Chief Executive Officer with the relevant power. That section is in the following terms:
(1)Subject to this section and the regulations, the Chief Executive Officer has an absolute discretion to release a prisoner from prison to serve a period of home detention in accordance with this Division.
(2)The exercise by the Chief Executive Officer of the discretion under subsection (1) is subject to the following limitations:
(a)   a prisoner who is serving or is liable to serve a sentence of indeterminate duration and has not had a non-parole period fixed cannot be released on home detention;
(b)    a prisoner cannot be released on home detention unless—
(i)in the case of a prisoner in respect of whom a non-parole period has been fixed—the prisoner has served at least one-half of the non-parole period;
(ii)in any other case—the prisoner has served at least one-half of the prisoner’s total term of imprisonment;
(c)          the release of a prisoner on home detention cannot occur earlier than 1 year before—
(i)in the case of a prisoner in respect of whom a non-parole period has been fixed—the end of the non-parole period;
(ii)in the case of a prisoner in respect of whom a non-parole period has not been fixed but whose total term of imprisonment is more than 1 year—the day on which the prisoner would otherwise be released from prison under this Act;
(d)   any limitations determined from time to time by the Minister, which may include, without limitation, the exclusion of prisoners sentenced for a specified class of offence or any other class of prisoners from release on home detention.
(6)     In this section—
“non-parole period”, in relation to a prisoner serving a sentence imposed for an offence against a law of the Commonwealth, includes the minimum term to be served under a recognisance release order;
“residence” includes, if the prisoner is an Aborigine who resides on tribal lands or an Aboriginal reserve, any area of land specified in the instrument of release.
It is of relevance to this appeal to note that subsection 37A(6) defines the defendant’s non-parole period as including the four-month term of imprisonment to be served under the recognisance release order. In this manner, the sentence the subject of this appeal includes a non-parole period for the purposes of section 37A.
In Telford v Severin,[5] Duggan J observed that section 37A and the regulation of home detention, is concerned with the place of detention. It was pointed out that release on home detention is stipulated by the statutory provision to be in the absolute discretion of the Chief Executive Officer. This provision confirms the administrative and managerial nature of the scheme. Duggan J noted:
When release on home detention was introduced into the Act it was stated in the second reading speech dealing with the amendments that the scheme was being introduced as a response to severe overcrowding in prisons. Prisoner rehabilitation was described in the speech as “a secondary consideration”.
The home detention scheme is essentially an administrative procedure. The Chief Executive Officer is given the discretion to direct that a portion of a prisoner’s detention, during the period of the sentence, is to take place in a particular manner. The sentence is not affected in any way. The liability imposed by the court remains.
The period of home detention, unless the release is earlier revoked, is co-extensive with the period which would have been served in an institution if there had been no release on home detention. The release of the prisoner on home detention may be revoked in the absolute discretion of the Chief Executive Officer for any reason. At the time the plaintiff was sentenced, the relevant Minister was empowered to impose any criteria for release on licence in addition to the criteria stipulated in the Act: s 37A(2)(c).
The requirement that release on home detention is not to take place until a fixed part of the non-parole period has been served acknowledges the element of punishment. However, home detention is also punitive in nature. Although the behaviour of a prisoner in prison is no doubt a relevant factor in deciding whether to order release on home detention, it is clear that the scheme was not introduced to reward good behaviour.
[5] Telford v Severin (2007) 98 SASR 70 at [15]-[18]. (White and Kelly JJ agreeing).
Counsel for the respondent submitted that the defendant’s complaint was misconceived. It was contended that when regard was had to the terms of section 37A and to the observations in Telford, the defendant’s complaint did not raise any basis to interfere with the Magistrate’s approach to sentencing.
The Magistrate acted within power. The circumstances of the offending did not give rise to a case for concurrency of sentencing. In imposing the sentence that he did and allowing for a degree of concurrency, the Magistrate imposed a sentence well within power. As earlier observed, in my view, that sentence was merciful. Any complaint or grievance that the defendant wishes to advance is in respect of the administrative decision of the Chief Executive Officer.
For these reasons, this appeal is dismissed.